Kaur

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PARWINDER KAUR, CASE NO. 4:25-cv-2679

Petitioner DISTRICT JUDGE

CHRISTOPHER A. BOYKO

vs.

MAGISTRATE JUDGE

REBECCA ADDUCCI, Direct of Detroit JAMES E. GRIMES JR.

Field Office, U.S. Immigration and

Customs Enforcement;

KRISTI NOEM, Secretary of the U.S. REPORT AND

Department of Homeland Security; and RECOMMENDATION

PAMELA BONDI, Attorney General of

the U.S., in their official capacities,

Respondents.

This matter is before the Court on Petitioner Parwinder Kaur’s petition

for writ of habeas corpus, Doc. 1, and motion for issuance of an order to show

cause, Doc. 5. In her petition, Kaur challenges her present detention without

bond at Mahoning County Justice Center, which began on September 15, 2025.

Doc. 1, at 2, 5. The Court referred this matter to a Magistrate Judge under

Local Rule 72.2 for the preparation of a Report and Recommendation. For the

following reasons, I recommend that the Court grant Kaur’s petition.

Factual Background and Immigration Court Proceedings1

The facts regarding Kaur’s presence in the United States and the

duration of her presence in the United States are not well developed in the

parties’ briefing, perhaps because not all of those facts are relevant to her

challenged detention. So the Court focuses on the facts that resulted in Kaur’s

current detention.2

Kaur is a 25-year-old citizen of India. Doc. 1, at 9. On January 3, 2024,

Kaur was taken into custody by border patrol agents at or near Lukeville,

Arizona. Doc. 1-5, at 1. At that time, agents noted that Kaur “was apprehended

within fourteen days of [her] last entry into the United States and within 100

air miles from the United States / Mexico international boundary.” Doc. 1-5, at

2. They also noted that she was “being processed and will be served with [a]

[Notice to Appear].” Id.

1 At this stage of proceedings, allegations in the Petition are accepted as

true and construed in Petitioner’s favor. See Alexander v. N. Bureau of Prisons,

419 F. App’x 544, 545-46 (6th Cir. 2011) (describing the pleadings standard

and applying to the § 2243 stage in a § 2241 petition). In addition, “documents

attached to the pleadings become part of the pleadings and may be considered”

without converting to summary judgment. Id. (quoting Commercial Money

Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335 (6th Cir. 2007)).

2 Exhibits submitted with the Government’s briefing demonstrate that

Kaur has been living in the United States since 2007 and, though not legally

married, participated in a religious ceremony in 2022 with her partner, as well

as that she lives with her partner and his parents in Ohio. See Doc. 16-1, at 1.

These facts, provided by the Government, tend to illustrate that Kaur lived in

the United States for an extended period of time before she was taken into

custody.

On January 4, 2024, the day after her apprehension, officials issued to

Kaur a Notice to Appear (“NTA”), which alleged that she was “an alien present

in the United States who has not been admitted or paroled.” Doc. 1-6, at 1. The

NTA detailed that she was charged and subject to removal under Section

212(a)(6)(A)(i). Id.; see 8 U.S.C. § 1182(a)(6)(A)(i). Although the NTA indicated

that Kaur was “not admitted or paroled,” officials released Kaur from custody,

presumably under the parole authority found at 8 U.S.C. § 1182(d)(5)(A), and

ordered her to appear before an immigration judge in Cleveland, Ohio, at a

hearing set for July 16, 2025. Doc. 1-6, at 1. In other words, Respondents

determined that Kaur was not subject to mandatory detention pending her

removal proceedings, which was scheduled for approximately 18 months after

her apprehension.

On September 15, 2025, immigration agents arrested Kaur while she

was attending a master calendar hearing in Cleveland, Ohio. Doc. 1, at 10.

Thereafter Kaur requested a custody redetermination, seeking release

on bond pending immigration proceedings. Doc. 1, at 10. On November 6, 2025,

an immigration judge denied Kaur’s request to be released on bond, stating

that “the Court does not have the authority to redetermine bond in this case.”

Doc. 1-7, at 1. Kaur appealed to the Board of Immigration Appeals (“BIA” or

“Board”) the immigration judge’s determination denying reconsideration for

release on bond. Doc. 1, at 10.

On December 18, 2025, the immigration judge issued a decision

explaining that, under Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA

2025), she “did not have jurisdiction over these bond proceedings.” Doc. 16-1,

at 2. The immigration judge added that “if the Court had jurisdiction to

redetermine [Kaur’s] bond, the Court finds that [Kaur] is not a danger to the

community, and that a $35,000 bond would mitigate any risk of flight.” Doc.

16-1, at 2.

Kaur’s habeas petition

On December 10, 2025, Kaur, through counsel, filed a petition for writ

of habeas corpus arguing that, based on the events described above, she “will

remain detained without a bond hearing in violation of her Due Process rights

under the United States Constitution without the possibility of bond from the

Immigration Court or review of that denial of jurisdiction by the BIA. Thus,

[Kaur] is being held without the opportunity to be heard regarding the

lawfulness of her detention.” Doc. 1, at 2.

One week later, on December 17, 2025, Kaur filed a motion for issuance

of an order to show cause, asking the Court to direct the Respondent to show

cause why a writ for habeas corpus should not be issued. Doc. 5. The same day,

the Court issued an order, which in substance granted Kaur’s motion

requesting a show cause order by directing the Respondents to respond, as well

as instructing Kaur to take certain actions regarding service. Doc. 6. Neither

party complied with the deadlines or directives in the Court’s order. So the

Court scheduled a hearing. Doc. 11. During the hearing, the parties explained

their non-compliance, the Court accepted their responses, and the Court

established an expedited briefing schedule regarding Kaur’s petition. Doc. 15.

The parties have now fully briefed their positions on Kaur’s petition, see

Docs. 16, 17, and for the reasons explained I recommend that the District Court

grant Kaur’s petition.

Legal Standard

Under Section 2241, the District Court may grant a writ of habeas

corpus to any person who demonstrates that she is in custody in violation of

the Constitution or laws of the United States. 28 U.S.C. § 2241(c)(3). The

longstanding consensus is that a person challenging the lawfulness of

detention may pursue redress through a writ of habeas corpus. See INS v. St.

Cyr, 533 U.S. 289, 301 (2001) (observing that “the writ of habeas corpus has

served as a means of reviewing the legality of Executive detention, and it is in

that context that its protections have been strongest.”); see also Demore v. Kim,

538 U.S. 510, 517 (2003); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

Nevertheless, federal district courts are limited in their authority to grant

relief under Section 2241 in immigration cases. See, e.g., Elgharib v.

Napolitano, 600 F.3d 597, 607 (6th Cir. 2010) (finding that a district court lacks

jurisdiction to consider removal orders).

Although the Court lacks jurisdiction over issues such as challenges to

the legality of a removal order, see Hamama v. Adducci, 912 F.3d 869, 876 (6th

Cir. 2018), it does have jurisdiction to consider whether a noncitizen is lawfully

detained. See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 117

(2020) (describing habeas corpus as the “‘appropriate remedy to’” determine

the legality of a person’s custody) (quoting 3 Commentaries on the Constitution

of the United States § 1333, p. 206 (1833)).

Discussion

1. The Court Has Jurisdiction Over Kaur’s Petition.

As a threshold matter, Respondents argue that this Court lacks

jurisdiction to review Kaur’s petition based on two statutory provisions. See

Doc. 16, at 12–15.3 Although the reasons supporting jurisdiction are discussed

below at length, it bears noting at the outset that it is questionable whether

any of the provisions in Section 1252 would apply to Kaur since that statute

concerns “Judicial review of orders of removal,” and the record indicates no

order of removal has been issued.

Respondents argue that “Section 1252(g) categorically bars jurisdiction

over ‘any cause or claim by or on behalf of any alien arising from the decision

or action by the [Secretary of Homeland Security] to commence proceedings,

adjudicate cases, or execute removal orders against any alien.’” Doc. 16, at 12

(quoting 8 U.S.C. § 1252(g)). Second, Respondents argue that “[u]nder §

1252(b)(9), ‘judicial review of all questions of law … including interpretation

3 The Court references the CM/ECF-generated pages numbers at the top

of Respondents’ filing.

and application of statutory provisions … arising from any action taken … to

remove an alien from the United States’ is only proper before the appropriate

court of appeals in the form of a petition for review of a final removal order.”

Doc. 16, at 12–13 (citing 8 U.S.C. § 1252(b)(9)).

Respondents are mistaken. See Deng Chol A. v. Barr, 455 F. Supp. 3d

896, 900–01 (D. Minn. 2020) (citing Zadvydas, 533 U.S. at 688).

First, Respondent’s argument that Section 1252(g) categorically bars

Kaur’s claims is unpersuasive. Section 1252(g) addresses a district court’s

jurisdiction over certain claims raised by non-citizens and provides in relevant

part that:

[e]xcept as provided in this section and

notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241

of Title 28, or any other habeas corpus provision, …

no court shall have jurisdiction to hear any cause or

claim by or on behalf of any alien arising from the

decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter.

8 U.S.C. § 1252(g). Based on this statute, Respondents argue that “the

Secretary of Homeland Security’s decision to commence removal proceedings,

includes the decision to detain an alien pending such removal proceedings.”

Doc. 16, at 12. The Respondent’s position, however, ignores the Supreme

Court’s caution that the jurisdictional limits detailed in Section 1252(g) have

a “narrow” reach, and apply only to “review of cases ‘arising from’ decisions ‘to

commence proceedings, adjudicate cases, or execute removal orders.’” Dep’t of

Homeland Sec. v. Regents of the Univ. of Calif., 591 U.S. 1, 19 (2020)

(explaining that the Supreme Court has “previously rejected as ‘implausible’

the Government’s suggestion that § 1252(g) covers ‘all claims arising from

deportation proceedings’ or imposes a ‘general jurisdictional limitation’”)

(quoting Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,

482 (1999)).

Indeed, for over 25 years, the Supreme Court has expressed that Section

1252(g) narrowly precludes from judicial review the three discrete categories

listed in subsection (g), which constitute “the initiation or prosecution of

various stages in the deportation process.” American-Arab Anti-Discrimination

Comm, 525 U.S. at 483. Outside of these three categories, the Supreme Court

noted that there are “many other decisions or actions that may be part of the

deportation process,” such as “the decisions to open an investigation, to surveil

the suspected violation, to reschedule the deportation hearing, to include

various provisions in the final order that is the product of the adjudication, and

to refuse reconsideration of that order.” Id. at 482.

A plurality of the Supreme Court has more recently affirmed the narrow

construction of Section 1252(g). See Jennings v. Rodriquez, 583 U.S. 281, 294

(2018) (plurality opinion). The three-justice plurality in Jennings, reiterated

that the Court “did not interpret [the phrase ‘arising from’] to sweep in any

claim that can technically be said to ‘arise from’ the three listed actions of the

Attorney General. Instead, [the Court] read the language to refer to just those

three specific actions themselves.” Id. at 294.

Here, Kaur’s claims do not challenge Respondents’ efforts to commence

proceedings, adjudicate cases, or execute removal orders. Instead, Kaur asserts

that her continued detention, under a mandatory detention regulation, violates

her Fifth Amendment due process rights and that, in the first instance, she

has been erroneously subjected to that mandatory detention regulation. See

Doc. 1, at 2. The immigration judge’s decision to detain Kaur without

possibility of release on bond arising out the application of a mandatory

detention statute is not tied to a decision to commence removal proceedings.

Kaur’s “detention does not arise from the government’s ‘commencement of

proceedings,’ which begins with the filing of an NTA in an immigration court.”

Mahdawi v. Trump, 136 F.4th 443, 450–51 (2d Cir. 2025) (quoting Otzurk v.

Hyde, 136 F.4th 382, 396–97 (2d Cir. 2025)).

For the reasons stated, including the plain language of Section 1252(g)

and the Supreme Court’s interpretation of that language, Respondent’s first

jurisdictional argument fails. See Kong v. United States, 62 F.4th 608, 615 (1st

Cir. 2023) (“there is no way to read [Section 1252(g)’s] legislative history as

evincing ‘a clear statement of congressional intent to repeal habeas

jurisdiction’ over all detention claims. To the contrary, § 1252(g) was passed

with the understanding that collateral challenges to the legality of a

petitioner’s detention would not constitute ‘cause[s] or claim[s]’ that ‘aris[e]

from the decision or action by the Attorney General to ... execute removal

orders.’”) (citation omitted).

Second, Respondent argues that Section 1252(b)(9) bars this Court’s

consideration of Kaur’s claim. Under Section 1252(b)(9):

Judicial review of all questions of law and fact,

including interpretation and application of

constitutional and statutory provisions, arising from

any action taken or proceeding brought to remove an

alien from the United States under this subchapter

shall be available only in judicial review of a final

order under this section. Except as otherwise

provided in this section, no court shall have

jurisdiction, by habeas corpus under Section 2241 of

Title 38 or any other habeas corpus provision, by

section 1361 or 1651 of such title, or by any other

provision of law (statutory or nonstatutory), to

review an order or such questions of law or fact.

8 U.S.C. § 1252(b)(9).

The Supreme Court has “described § 1252(b)(9) as a ‘zipper clause’ which

“consolidate[d] ‘judicial review’ of immigration proceedings into one action in

the court of appeals.” St. Cyr, 533 U.S. at 313.4 But the Court has made clear

that “it applies only ‘[w]ith respect to review of an order of removal under

subsection (a)(1).’” Id. (emphasis added). As a result, “§ 1252(b)(9) does not

4 Congress amended the Immigration and Nationality Act in response to

St. Cyr, to eliminate habeas as a method to review final orders of removal for

criminal aliens. See REAL ID Act of 2005, Pub. L. 109-13. Div. B, § 106, 119

Stat. 231; Nasrallah v. Barr, 590 U.S. 573, 580 (2020). Importantly, although

“the Real ID Act eliminate[d] a district court’s jurisdiction over habeas

petitions challenging final orders of removal,” it “did not eliminate a district

court’s jurisdiction to review habeas petitions challenging an alien’s

detention.” Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006).

clearly apply to actions brought pursuant to the general habeas statute, and

thus cannot repeal that statute either in part or in whole.”5 Id. at 314.; see also

Ozturk, 136 F.4th at 399.

Instead of acknowledging St. Cyr, Respondents look to Justice Thomas’s

concurrence in Jennings to support their assertion that “[t]he fact that [Kaur]

is challenging the basis upon which she is detained is enough to trigger §

1252(b)(9) because ‘detention is an “action taken … to remove” an alien.’” Doc.

16, at 14. But Kaur is not seeking review of a final order of removal, as she is

not subject to one. Instead, she challenges the constitutionality of and the

purported mandatory nature of her detention without opportunity for bond.

Based on the Supreme Court’s interpretation of Section 1252(b)(9), the

legislative history of that provision, and other federal court’s interpretations of

the same, Respondent’s arguments do not provide a basis to find the Section

1252(b)(9)’s jurisdictional-bar applies to Kaur’s petition.

Lastly, the Respondents dispute Kaur’s assertion that Section 1252(e)(2)

conveys jurisdiction. See Doc. 1, at 3. Given that subsections (b)(9) and (g) don’t

bar this Court’s review, this issue is not directly relevant. But for the sake of

5 In support of this aspect of their argument, Respondents cite a portion

of Jennings that was joined only by a three-justice plurality. See Doc. 16, at 14.

Even so, that portion “of Jennings does not support the conclusion that §

1252(b)(9) bars jurisdiction over habeas challenges to detention.” Ozturk v.

Hyde, 136 F.4th 382, 399 (2d Cir. 2025). Rather that portion “rejected the

government’s ‘expansive interpretation of § 1252(b)(9).’” Id.

completeness, Section 1525(e)(2) “limits the review that an alien in expedited

removal may obtain via a petition for a writ of habeas corpus.” Thuraissigiam,

591 U.S. at 111 (emphasis added). The problem with this aspect of Kaur’s

petition is that Section 1225(b)(1) concerns expedited removal proceedings, see

id., 591 U.S. at 109, and Kaur’s own evidence shows that she is not in expedited

removal proceedings, see Doc. 1-6 (NTA placing Kaur in “240 proceedings); see

also Hernandez Torrealba v. U.S. Dep’t of Homeland Sec., No. 1:25-cv-1621,

2025 WL 2444114, at *4 (N.D. Ohio Aug. 25, 2025) (explaining the difference

between expedited and standard removal proceeding). So Section 1252(e)(2)

does not apply.

For all of the reasons stated, the Court should find that it possesses

jurisdiction to consider Kaur’s Petition challenging the constitutionality of her

detention.

2. Kaur Is Excused From Administrative Exhaustion

Having concluded that the Court has jurisdiction to consider Kaur’s

claims, the next issue is whether Kaur has exhausted her available

administrative remedies, and, if not, whether she is excused from exhaustion.

“When ‘Congress has not clearly required exhaustion, sound judicial

discretion governs’ whether or not exhaustion should be required.” See

Shearson v. Holder, 725 F.3d 588, 593 (6th Cir. 2013) (citation omitted).

“[E]xhaustion may not be required when the administrative remedy ‘does not

serve the purposes behind the exhaustion doctrine[],’if the ‘administrative

remedies are inadequate or not efficacious,” or “where pursuit of

administrative remedies would be a futile gesture.” Id. at 594 (quoting

Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir. 1981)).

“Additionally, ‘[e]xhaustion of administrative remedies may not be required in

cases of non-frivolous constitutional challenges to an agency’s procedures.’” Id.

(quoting Bangura v. Hansen, 434 F.3d 487, 493 (6th Cir. 2006)).

Here, Respondents’ position that exhaustion should apply appears to be

based simply on the assumption that Kaur was required to wait until the Board

issued a final administrative decision before filing her petition. Doc. 16, at 16.

Respondents, however, ignore Kaur’s waiver and futility arguments. See Doc.

1, at 5–9. Respondents’ have thus forfeited any argument that waiver or futility

should not excuse the prudential exhaustion requirement.6

Moreover, Kaur urges that “waiver [of the exhaustion requirement] is

appropriate when the interest of the individual weigh heavily against

requiring administrative exhaustion, or exhaustion would be futile and unable

to afford the petitioner the relief he seeks.” Doc. 1, at 7. Again, Respondents do

not address Kaur’s waiver argument. See Doc. 16, at 15–16. The Court is thus

left to consider Kaur’s unopposed arguments in favor of waiving the exhaustion

requirement. In particular, Kaur’s argument that exhaustion would be futile,

6 It may be, as Respondents assert, that some Courts in this District have

dismissed petitions for failure to exhaust. See Doc. 16, at 15. But that fact

would only matter if Respondents had not forfeited challenges to Kaur’s

argument that the prudential exhaustion requirement should not apply.

considering the Board’s recent decision in Matter of Yajure Hurtado, is strong.

See e.g., Doc. 1, at 2, 7 (asserting that exhaustion would be futile considering

recent Board holdings that have dismissed appeals based on the Board’s

interpretation that it lacks jurisdiction over appeals of custody

redetermination in cases like Kaur’s). The immigration judge’s December 18,

2025 decision and order highlight the futility of administrative exhaustion in

Kaur’s circumstances. See Doc. 16-1.

Considering the predictable outcome of Kaur’s appeal to the Board,

exhaustion is futile. And dismissal on exhaustion grounds would operate to

prolong any alleged Due Process violation, which, as is discussed below,

Respondents do not contest. This delay would impose further hardship on Kaur

and weighs against requiring administrative exhaustion. See Shalala v.

Illinois Counsel, 529 U.S. 1, 13 (2000) (“Doctrines of ‘ripeness’ and ‘exhaustion’

contain exceptions, however, which exceptions permit early review when, for

example, the legal question is ‘fit’ for resolution and delay means hardship[.]’”).

Indeed, as Kaur highlights, other courts have found that such delay pending

appeal would directly “result in the very harm that the bond hearing was

designed to prevent[.]” See Doc. 1, at 8.

For all of the reasons stated, the Court should waive application of the

prudential exhaustion requirement in this case and proceed to consideration

of the merits of Kaur’s Petition.

3. Mandatory detention under 8 U.S.C. § 1225(b)(2) does not apply to

Kaur because she is subject to discretionary detention under 8 U.S.C.

§ 1226(a).

The parties dispute whether Kaur falls under Section 1225(b)(2) or

Section 1226(a). They agree, however, that Section 1225 and 1226 apply to

different classes of aliens. See Doc. 1, at 12; Doc. 16, at 21.

Under Section 1225, a noncitizen “who ‘arrives in the United States,’ or

‘is present’ in this country but ‘has not been admitted,’ is treated as ‘an

applicant for admission.’” Jennings, 283 U.S. at 287. There are two categories

of applicants for admission described in Section 1225, “those covered by §

1225(b)(1) and those covered by § 1225(b)(2).” Id. As relevant here, Section

1225(b)(2)(A) provides that “in the case of an alien who is an applicant for

admission, if the examining immigration officer determines that an alien

seeking admission is not clearly and beyond a doubt entitled to be admitted,

the alien shall be detained for a proceeding under section 1229a of this title.”

8 U.S.C. § 1225(b)(2) (emphasis added). By contrast, under Section 1226(a) “an

alien may be arrested and detained pending a decision on whether the alien is

to be removed from the United States.” 8 U.S.C. § 1226(a) (emphasis added).

And immigration authorities “may release the alien on … bond … or …

conditional parole.” 8 U.S.C. § 1226(a)(2)(A), (B). Further, 8 U.S.C. § 1229a

sets out the manner in which removal proceedings should occur but does not

impose a detention requirement.

Respondents argue that Kaur is subject to mandatory detention based

on application of Section 1225(b)(2). Specifically, the Respondents assert that:

§1225 is the applicable detention authority for all

applicants for admission––both arriving aliens and

aliens present without admission alike, regardless of

whether the alien was initially processed for

expedited removal proceedings under 8 U.S.C. §

1225(b)(1) or placed directly into removal

proceedings under 8 U.S.C. § 1229a––and “[b]oth [8

U.S.C. § 1225(b)(1) and (b)(2)] mandate detention ...

throughout the completion of applicable

proceedings,” Jennings, 283 U.S. at 301–03, IJs do

not have authority to redetermine the custody status

of an alien present without admission.

Doc. 16, at 21. In other words, Respondents’ current position is that Kaur is (1)

an alien present without admission, (2) subject to removal proceedings detailed

in 8 U.S.C. § 1229a, (3) both an applicant for admission and an alien seeking

admission, and (4) as a result of the preceding three qualities, subject to

mandatory detention and “ineligible for a bond redetermination hearing before

an [immigration judge].” Doc. 16, at 23. Respondents’ assertion that detention

is mandatory is based on the language “shall be detained” found in Section

1225(b)(2). See Doc. 16, at 20–23.

Kaur does not dispute that she entered the United States on or about

January 3, 2024, without presenting herself at a point of entry and without

having been admitted after inspection by an immigration officer. See Doc. 1-5,

at 2. The NTA, attached to Kaur’s petition, further illustrates that she is

alleged to be “an alien present in the United States who has not been admitted

or paroled.” Doc. 1-6, at 1. Nevertheless, Kaur’s processing disposition was

“Notice to Appear Released,” see Doc. 1-5, at 1, and she was not detained for

over 18 months before she appeared at an immigration hearing and was

apprehended in September 2025.

Indeed, at this Court’s Show Cause Hearing, the Court addressed the

Respondents’ seemingly contradictory conduct when it asked: “Ms. Kaur was

paroled into the United States under [8 U.S.C. §] 1182(d)(5)(A),7 right?” Show

Cause Hearing 1/5/2026, at 10:10:20AM–10:11:51AM. Respondents did not

clearly answer whether Kaur was specifically paroled but confirmed that she

was not detained during the time between January 2024 and September 2025.

Id. Respondents did, however, confirm that Kaur was not subjected to

mandatory detention when she was initially apprehended. Id. The Court

further questioned the change between the Government’s conduct in January

2024 and its conduct in September 2025, which Respondents explained was

based on the Board’s decision in Matter of Yajure Hurtado. Id.

The issue before the Board in Matter of Yajure Hurtado, however, was

whether immigration judges have the “authority to hold a bond hearing for an

alien present in the United States who has not been admitted after inspection.”

7 Even if Kaur were released on parole, Respondents aptly point out that

the Supreme Court in Jennings found that the decision to release on parole

under Section 1182(d)(5)(A) is within the discretion of the Department of

Homeland Security. See 583 U.S. at 288. So Kaur’s release on parole does not

affect the analysis of whether Kaur has been classified as an alien subject to

Section 1225 or 1226.

29 I. & N. Dec. at 216. So that decision does not fully explain the reason that

Kaur was apprehended.

In any event, in their return of writ, Respondents elaborate on their

position that immigration judges are bound by Matter of Yajure Hurtado to

impose mandatory detention in removal proceedings conducted under Section

1229a. See Doc. 16, at 20. Additionally, Respondents point to language in

Jennings: “[r]ead most naturally, §§ 1225(b)(1) and (b)(2) thus mandate

detention of applicants for admission until certain proceedings have

concluded.” Jennings, 583 U.S. at 301–03; see Doc. 16, at 21.

Respondents, however, omit another portion of Jennings, in which the

Court said, that “[w]hile the language of §§ 1225(b)(1) and (b)(2) is quite clear,

§ 1226(c) is even clearer. As noted, § 1226 applies to aliens already present in

the United States.” 583 U.S. at 303 (emphasis added). So although it appears

that Kaur could be subject to mandatory under Section 1225 there are plainly

other statutory provisions applicable to this matter.

In particular, Kaur argues that she falls under Section 1226(a) and is

thus eligible for discretionary bond or parole. To this end, she asserts that

Section 1225(b)(2) requires “both an ‘applicant for admission’ who is also

‘seeking admission,’” Doc. 17, at 6 (emphasis in original). Indeed, another unit

of this Court recently explained that although Section 1226(a) provides

generally that an alien may be released on bond, Section 1225(b)(2) provides a

“carveout” for individuals “who are (1) either present in the United States

without having lawfully entered after inspection and authorization by an

immigration officer or arriving in the United States and (2) seeking lawful

entry via inspection and authorization by an immigration officer.” See Chavez

v. Dir. of Detroit Field Off, No. 4:25-cv-2061, 2025 WL 3187080, at *4 (N.D.

Ohio Nov. 14, 2025). Respondents make the conclusory assertion that Kaur is

“an alien present without admission and, consequently, an applicant for

admission,” Doc. 16, at 17, but they say nothing about how she could be an

alien “seeking admission.” Instead, Respondents’ position conflates the terms

“applicant for admission” and “seeking admission” by using the phrase

“applicant for admission seeking admission”––which does not appear in any of

the relevant statutes––to describe Kaur. See Doc. 16, at 17. Based on the

Respondents’ reading, the carve-out becomes a catch-all.

It is undisputed that Kaur is an applicant for admission, but

Respondents do not offer any convincing argument that she is “seeking

admission” for purposes of Section 1225(b)(2). See Doc. 16, at 12 (citing Board

decisions to support the position that Kaur should be considered “seeking

admission”). Indeed, “[t]he Supreme Court understood § 1225 to operate ‘at the

Nation’s borders and ports of entry’ and involve the ‘inspection of immigrants

by immigration officers.’” Chavez, 2025 WL 3187080, at *5 (quoting Jennings,

583 U.S. at 287). Following this logic, courts in the Sixth Circuit have held that

the plain language of Section 1225(b)(2) applies to aliens arriving in the United

States. Id. (citing Contreras-Cervantes v. Raycraft, No. 2:25-cv-13073, 2025 WL

2952796, at * 7 (E.D. Mich Oct. 17, 2025)).

Tellingly, immigration authorities in Kaur’s NTA alleged, by checking a

box, that she is: “an alien present in the United States who has not been

admitted or paroled.” Doc. 1–6, at 1 (emphasis added). Authorities did not

check the box immediately above that box, which provides “You are an arriving

alien.” Respondents’ choice amounts to a judicial admission that Kaur is not

an arriving alien. See Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008)

(explaining that allegations in a Notice to Appear, like those in a complaint,

are judicial admissions); see also Official Comm. of Unsecured Creditors of

Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003)

(“the allegations in the Second Amended Complaint are judicial admissions by

which [Plaintiff] was bound throughout the course of the proceeding”) (internal

quotation marks and alterations omitted)); El Paso Nat. Gas Co. v. United

States, 750 F.3d 863, 876 (D.C. Cir. 2014); Keller v. United States, 58 F.3d 1194,

1198 n.8 (7th Cir. 1995).

Under the plain text of Kaur’s NTA, Kaur was simply passively present

in the United States without being admitted or paroled––and nothing more.

Further bolstering that Kaur was not “seeking admission,” as is required for

Section 1225(b)(2) to apply, the Respondents acknowledge that Kaur has lived

in the United States since 2007. Doc. 16-1, at 1. Indeed, “seeking” implies

action, meaning it “requires something more than just passively being present

in the United States.” Chavez, 2025 WL3187080, at *5 (citations omitted).

Despite the fact that Kaur was apprehended near the United States-Mexico

border, it is clear to all involved that Kaur has lived in the United States for

years before being detained. “[A]s an immigrant arrested and detained while

‘already in the country[,]’ [Kaur] falls more aptly within § 1226a’s default rule.”

Chavez, 2025 WL 3187080, at *4; see also id. at *7, n.6 (collecting cases).

Respondents also assert that “Section 1226(a) does not [] confer the right

to release on bond; rather both DHS and IJs have broad discretion in

determining whether to release an alien on bond as long as the alien

establishes that he or she is not a flight risk or a danger to the community.”

Doc. 16, at 25. While Section 1226(a) may not convey a “right to release on

bond,” that section does make available discretionary release on bond or parole,

which Kaur claims she was denied. The Respondents do not dispute that the

immigration judge found that she was precluded from conducting a bond

hearing. See Doc. 16. So Respondents’ point regarding discretion for release on

bond versus a right to bond is unclear.

What is clear is that Section 1226(a) gives immigration judges broad

discretion to permit or deny release on bond. And Section 1226(A) “makes no

distinction between admitted and unadmitted immigrants.” Chavez, 2025 WL

3187080, at *5. The key is that Section 1226(a) makes such discretion

available, rather than imposing mandatory detention.

Here, the immigration court found that it did not have any discretion to

conduct a bond hearing or reconsider the denial of bond because the court

erroneously applied Section 1225(b)(2) to find that detention was mandatory.

As a result of the Respondents’ misclassification of Kaur, she has been

erroneously deprived of something she is statutorily entitled to. This

deprivation is particularly harmful where, as here, the immigration judge

explicitly found that if she had such discretion, then she would have found

Kaur eligible for bond. See Doc. 16, at 33.

One final note on this point. Respondents focus on the phrase “shall be

detained” in relevant statutes and regulations to basically argue that the

Government’s hands are tied. See Doc. 16, at 18, 20, 21. But it has long been

the case that, in the prosecutorial or agency enforcement context, the term

“shall” can mean “may” or suggest discretion. See Town of Castle Rock,

Colorado v. Gonzales, 545 U.S. 748, 760–61 (2005); Heckler v. Chaney, 470 U.S.

821, 831 (1985); Richbourg Motor Co. v. United States, 281 U.S. 528, 534

(1930); Gratton v. Wildasin, No. 21-5824, 2022 WL 3969833, at *2 (6th Cir.

June 22, 2022). So shall does not necessarily carry the weight that

Respondents suggest.

Because Kaur should have been, but was not, considered for release on

bond under Section 1226(a), the Court should grant her petition and order the

immigration court to conduct a bond hearing.

4. The Government Forfeited Any Opposition To Kaur’s Due Process

Claim.

Even if the District Court finds that Kaur is subject to mandatory

detention under Section 1225(b)(2), it should grant her petition and direct the

immigration court to conduct a bond hearing under the Fifth Amendment Due

Process Clause. The Fifth Amendment right to due process applies to all

persons, including noncitizens, who are present in the United States.

Zadvydas, 533 U.S. at 693.

Generally, Kaur claims that she her continued detention absent a bond

hearing represents a violation of her right to due process. Doc. 1, at 2, 6, 17–

18. The Government, however, offers no discernable response to Kaur’s due

process claim. See Doc. 16 (omitting any response or reference to the

authorities or arguments Kaur raised in her petition pertaining to due process

violations based on denial of a bond hearing). So the Government has forfeited

any opposition to Kaur’s due process argument and, on that basis alone, the

Court could find that she is entitled to habeas relief. As a result, even if the

Government were correct that Kaur should be subject to mandatory detention,

the Court should grant Kaur the relief she seeks.

Further, the merits of Kaur’s due process claim under the applicable

balancing test justify relief. See United States v. Silvestre-Gregorio, 983 F.3d

848, 852 (66h Cir. 2020) (applying the balancing test established in Mathews

v. Eldridge, 424 U.S. 319 (1976)). Under this test the Court weighs: (1) the

private interest that will be affected by the official action; (2) the risk of

erroneous deprivation of that interest; and (3) the government’s interest,

including the fiscal and administrative burdens that the additional or

substitute procedures entail. See Mathews, 424 U.S. at 335.

First, Kaur’s liberty is at stake. Second, the Government’s position has

been inconsistent. As discussed above, the immigration court acknowledged,

and the Government does not dispute, that Kaur has lived in the United States

since 2007. See Doc. 16-1, at 1. This fact is supported by the Kaur’s NTA, which

omits any allegation that she is an arriving alien. Doc. 1-6, at 1. Kaur was

previously released and permitted to go about living for over 18 months in the

United States during the pendency of her immigration proceedings before

being detained in September 2025. These contradictions tend to show that

Kaur is at risk of being erroneously deprived of her freedom. The second factor

thus weighs in her favor.

Lastly, based on the information described throughout this

recommendation, the Government has not and likely cannot show that it has

any significant interest in Kaur’s continued detention. Indeed the fact that the

Government’s released Kaur for over 18 months and the immigration judge’s

statement that she would release Kaur on bond, weigh strongly against any

potential argument by the Government regarding this third factor.

Based on the Government’s forfeiture of any challenge to Kaur’s due

process claim and on the merits of Kaur’s due process claim, I recommend that

her Petition be granted, and that the immigration court be ordered to conduct

a bond hearing.

Conclusion

Because Section 1225(b) is inapplicable to Kaur, Respondents may not

now impose mandatory detention against her pending her removal decision. I

recommend that the District Court grant Kaur’s petition and require the

immigration court to conduct a hearing to determine whether, consistent with

this Court’s determination, Kaur is entitled to discretionary bond under

Section 1226(a).

Dated: January 14, 2025

/s/James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).